Duncan v Vizzard - [1935] HCA 43

RESPONDENT. INFORMANT,

GREEN STAR TRADING COMPANY PRO-

PRIETARY LIMITED VIZZARD

RESPONDENT. INFORMANT,

ON REMOVAL FROM THE COURT OF CRIMINAL APPEAL OF

NEW SOUTH WALES. Constitutional Law-Freedom of trade, commerce and intercourse among the States-

Regulation of facilities for transport-Licensing of public motor vehicles - Goods transported by motor lorry from consignor in one State to con- signee in another State-Licence-Conditions-Validity-Competition with railways-The Constitution (63 &64 Vict. c. 12), sec. 92-State Transport June 14, 17. (Co-ordination) Act 1931 (N.S.W.) (No. 32 of 1931), secs. 12 (1), 17 (5), 18, 19,

A company transported goods for reward, by motor lorry, from a consignor in Melbourne, Victoria, to a consignee in a town in New South Wales situate The State Transport (Co-ordination)

vehicle is licensed under this Act by the Act 1931 (N.S.W.) provides as fol-

Board and unless he is the holder of lows :-By sec. 12 (1): " Any person

such licence, be guilty of an offence who after a date appointed by the

against this Act: Provided that this Governor and notified by proclamation

sub-section shall not apply to a public published in the Gazette operates a

motor vehicle that is being operated public motor vehicle shall, unless such

under and in accordance with an

53 CLR 494

more than fifty miles from the border. The town was served by a railway, The company held a licence in respect of the lorry under the State Transport (Co-ordination) Act 1931 (N.S.W.). Upon the licence was indorsed Special Conditions (Non-competitive licence). (1) The within-mentioned vehicle authorized to operate as a goods motor vehicle on or in routes, roads, areas

New South Wales:-(a on journeys none of which, for a distance exceeding fifty miles, is competitive with the railways or tram-

(2) In respect of any journey which is wholly or partly competitive with the railways or tramways, the licensee shall pay the full competitive distance (in addition to any other sums payable under

and this licence or either of them) threepence per ton

of the weight of the vehicle" loaded to capacity per mile travelled by the vehicle

along a public street. (3) Provided that the terms, conditions and authorities of or attached to this licence are complied with, the licensee and the driver

shall be exempt from the conditions mentioned in " sec. 18 (5) of the Act, and unless the Commissioner otherwise determines, from the obligations imposed by regulations 9 and 10 under that Act in respect of any journey which is not, for a distance exceeding fifty miles competitive with the railways or tramways."

Held, by Rich, Evatt and McTiernan JJ. (Starke J. dissenting) that the provisions of sec. 92 of the Constitution were not infringed by the State Transport (Co-ordination) Act, or by the regulations thereunder, or by the administration of the Act as disclosed by the evidence and the terms of the licence; and, by Dixon J., that the decisions of the majority of the Court in R. V. Vizzard Ex parte Hill, (1933)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1935] HCA 43
Decision Date: 17 June 1935

CaseChat Overview and Summary

The case of *Green Star Trading Company Proprietary Limited v Vizzard* concerned prosecutions under the *State Transport (Co-ordination) Act 1931* (NSW). The informant, Mr. Vizzard, laid charges against the Green Star Trading Company Pty Ltd and its driver, Alexander Duncan. The company, incorporated in Victoria, transported goods by motor lorry from Melbourne to various towns in New South Wales, including Griffith, which was over fifty miles from the border. These journeys were competitive with the state railways. The company held licences for its lorries under the Act, but these licences were endorsed with special conditions, including a "Non-competitive licence" clause and a requirement to pay a fee per ton per mile for journeys competitive with the railways. Duncan was charged with driving a lorry on a journey not authorised by its licence.

The central legal issues before the court were whether the provisions of the *State Transport (Co-ordination) Act 1931* (NSW), including its regulations and the administration of the Act as evidenced by the licence conditions, infringed section 92 of the Australian Constitution, which guarantees freedom of trade, commerce, and intercourse among the States. Specifically, the court had to determine if the licensing scheme and the conditions imposed on the licences, particularly those relating to competition with railways and the payment of fees for competitive journeys, constituted an impermissible burden on interstate trade.

A majority of the High Court, comprising Rich, Evatt, and McTiernan JJ., held that the *State Transport (Co-ordination) Act 1931* (NSW) and its administration did not infringe section 92 of the Constitution. Dixon J. further noted that the majority decisions in previous cases, *R. v. Vizzard Ex parte Hill*, *O. Gilpin Ltd. v. Commissioner for Road Transport and Tramways (N.S.W.)*, and *Bessell v. Dayman*, fully addressed the validity of the licences in the form they were issued. The court also found that the licence held by the company did not permit its lorry to be used on a journey that was competitive with the railways for a distance exceeding fifty miles. Consequently, the company was found to have offended against section 17 (5) of the Act for failing to comply with the licence conditions, and Duncan was found to have offended against section 28 (1) (c) for driving the lorry on an unauthorised journey.

Orders